Opinion
C/A 9:21-00387-TMC-MHC
05-14-2021
Robert Lee Foster, Plaintiff, v. Gov. Henry McMaster, Alan Wilson, Bryant Sterling, Warden Evonne Willingham, Defendants.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge.
This a civil action filed by a state prisoner. In the event a limitations issue arises, Plaintiff shall have the benefit of the holding in Houston v. Lack, 487 U.S. 266 (1988) (prisoner's pleading was filed at the moment of delivery to prison authorities for forwarding to the district court). Under 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings in this action have been referred to the assigned United States Magistrate Judge.
Under established local procedure in this judicial district, a careful review has been made of the pro se Complaint pursuant to the procedural provisions of 28 U.S.C. § 1915, the Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 1321 (1996), and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992), Neitzke v. Williams, 490 U.S. 319 (1989), Haines v. Kerner, 404 U.S. 519 (1972), Nasim v. Warden, Maryland House of Corr., 64 F.3d 951 (4th Cir. 1995), and Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983). Pro se petitions are held to a less stringent standard than those drafted by attorneys, and a court is charged with liberally construing a petition filed by a pro se litigant to allow the development of a potentially meritorious case. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); King v. Rubenstein, 825 F.3d 206, 214 (4th Cir. 2016).
However, even when considered under this less stringent standard, for the reasons set forth below, the Complaint submitted in this case is subject to summary dismissal. The requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990); see also Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (outlining pleading requirements under Rule 8 of the Federal Rules of Civil Procedure for “all civil actions”).
BACKGROUND
Plaintiff is an inmate at the Trenton Correctional Institution of the South Carolina Department of Corrections (SCDC). He claims that is being falsely imprisoned on a Spartanburg County charge of trafficking ice, crank, crack more than 10 grams but less than 28 grams (arrest date of October 4, 2007) that was dismissed in September 2008, and was later expunged from his record in October 2020. See Complaint, ECF No. 1; Attachment to Plaintiff's Letter, ECF No. 11-1 at 26-27.
Records from the Spartanburg County Circuit Court and the SCDC indicate that Plaintiff is serving a sentence of twenty-years' imprisonment for his conviction on the charge of manufacturing/distributing crack-3rd offense. The Spartanburg County records provide that Plaintiff was arrested on this charge on October 3, 2007, and indicted (indictment number 2008-GS-42-02261) on May 15, 2008. The SCDC records note that Plaintiff's sentence started on October 3, 2007, with a projected release date of September 28, 2024. See Spartanburg County Seventh Judicial Circuit Public Index, https://publicindex.sccourts.org/Spartanburg/PublicIndex/ CaseDetails.aspx?County=42&CourtAgency=42001&Casenum=2008GS4202261&CaseType=C &HKey=5212299112697711182907216858610711811373107837910810711351784311852108 4370796699112551091141061228010977 (last visited May 12, 2021); SCDC Inmate Report, http://public.doc.state.sc.us/scdc-public/ [Search Inmate “Robert Foster” ] (last visited May 12, 2021).
Plaintiff also submitted a copy of the indictment. ECF No. 11-1 at 11.
This Court “may properly take judicial notice of matters of public record.” See Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘[t]he most frequent use of judicial notice is in noticing the content of court records.'”).
Plaintiff alleges that Defendants conspired to falsely imprison him, subjected him to human trafficking, and kidnapped him for profit. ECF No. 1 at 4. He asserts that he has been held at SCDC on Warrant K-285779, case number 2007-GS-42-06029, since May 22, 2008, and that the charge was never indicted by the grand jury. Id. at 5. Plaintiff requests that he be released from SCDC and compensated for being subjected to human trafficking for profits. Id. at 6.
DISCUSSION
I. Frivolousness
As an initial matter, Plaintiff's claims should be dismissed because they are frivolous. Plaintiff complains about being falsely imprisoned on a charge in case number 2007-GS-42-06029, Warrant K-285779, which was dismissed in September 2008 and expunged in 2020. However, as discussed above, Plaintiff is not imprisoned on the charge in case number 2007-GS-42-06029, but instead is imprisoned pursuant to his conviction in case number 2008-GS-42-02261. Plaintiff was convicted and imprisoned on May 15, 2008 in case number 2008-GS-42-02261, prior to the dismissal of case number 2007-GS-42-06029. Plaintiff contends he was never indicted in case number 2007-GS-42-06029. However, he was indicted in case number 2008-GS-42-02261. Plaintiff simply fails to allege any facts to indicate that he is imprisoned based on the dismissed and expunged charge in case number 2007-GS-42-06029.
II. Requested Relief Not Available
Additionally, Plaintiff fails to state a viable claim for relief. In the “Relief” section of the Complaint, Plaintiff requests that he be released from the SCDC. However, release from prison is not an available remedy in a § 1983 action. See Heck v. Humphrey, 512 U.S. 477, 481 (1994) (stating that “habeas corpus is the exclusive remedy for a state prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier release, even though such a claim may come within the literal terms of § 1983”); Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973)(attacking the length of duration of confinement is within the core of habeas corpus).
Plaintiff previously filed a petition for relief pursuant to 28 U.S.C. § 2254 challenging his May 2008 conviction and sentence. This Court granted the respondent's motion for summary judgment and dismissed the petition with prejudice. See Foster v. Reynolds, No. CV 9:14-3853-TMC, 2015 WL 5920736 (D.S.C. Oct. 8, 2015). Even if the current action is construed as a § 2254 petition, it would be successive and Plaintiff could not proceed without first obtaining pre-filing authorization from the Fourth Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A).
Plaintiff also requests compensation for his imprisonment. However, such a claim for relief should be summarily dismissed based on the United States Supreme Court's decision in Heck v. Humphrey, where the Court held that a state prisoner's claim for damages is not cognizable under § 1983 where success of the action would implicitly question the validity of the conviction or duration of the sentence, unless the prisoner can demonstrate that the conviction or sentence has been previously invalidated. Heck, 512 U.S. at 486-487.
Although there are exceptions to Heck where an award would not implicitly question the validity of the conviction or duration of the sentence, see, e.g., Dizzley v. Garrett, 836 Fed.Appx. 157 (4th Cir. 2021); Covey v. Assessor of Ohio Cty., 777 F.3d 186 (4th Cir. 2015), Plaintiff has not alleged any facts indicating such an exception.
Plaintiff asserts that his charge pursuant to Warrant K-285779 (case number 2007-GS-42-06029) was dismissed on September 26, 2008. ECF No. 1 at 4. However, Plaintiff has presented no evidence that the 2008 conviction and sentence for manufacturing and distributing cocaine base (case number 2008-GS-42-02261), for which he is currently incarcerated, has been invalidated. Additionally, as noted above, any challenge to a conviction and sentence cannot be brought in a § 1983 action.
III. Failure to State a Claim
Although Plaintiff alleges that Defendants conspired to use him for trafficking and kidnapped him for profit, see ECF No. 1 at 4, he simply fails to allege any facts to establish such a claim. To establish a civil conspiracy under § 1983, a Plaintiff must present evidence that the Defendants acted jointly in concert and that some overt act was done in furtherance of the conspiracy, which resulted in the deprivation of a constitutional right. Glassman v. Arlington Cnty., 628 F.3d 140 (2010) (citing Hinkle v. City of Clarksburg, 81 F.3d 416 (4th Cir.1996)). A plaintiff must come forward with specific evidence that each member of the alleged conspiracy shared the same conspiratorial objective. Hinkle, 81 F.3d at 421. The factual allegations must reasonably lead to the inference that the defendants came to a mutual understanding to try to “accomplish a common and unlawful plan” and a plaintiff's allegations must amount to more than “rank speculation and conjecture, ” especially when the actions are capable of innocent interpretation. Id. at 421-422. Here, Plaintiff has presented no facts indicating an agreement or meeting of the minds between these Defendants, such that these claims are subject to summary dismissal. See generally Ashcroft v. Iqbal, 556 U.S. at 677-679; Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Simmons v. Sacramento County Superior Court, 318 F.3d 1156, 1161 (9th Cir. 2003) (conclusory allegations of conspiracy between private attorney and state officer insufficient to support § 1983 claim).
Plaintiff mentions that inmates where he is imprisoned have become infected with the COVID-19 virus and states that he has been treated for various medical conditions. ECF No. 1 at 5-6. To the extent Plaintiff may be attempting to allege a claim regarding his conditions of confinement, he fails to state a claim as has not alleged that he suffered any serious physical or mental injury as a result of his conditions of confinement or that a named Defendant was deliberately indifferent to his prison conditions. See Strickler v. Waters, 989 F.2d 1375, 1379-1381 (4th Cir.1993). He admits he received care for his medical complaints and simply fails to state any claim for medical deliberate indifference as he has not alleged that he had a serious or life-threatening medical condition and that Defendants were deliberately indifferent to that need. See Heyer v. United States Bureau of Prisons, 849 F.3d 202, 209-210 (4th Cir. 2017) (citing Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)); see also King v. Rubenstein, 825 F.3d 206, 218-20 (4th Cir. 2016); Estelle v. Gamble, 429 U.S. 97, 104 (1976).
IV. Prosecutorial Immunity
Defendant Alan Wilson, the Attorney General for the State of South Carolina, is also subject to summary dismissal based on prosecutorial immunity. Prosecutors have absolute immunity from damages for activities performed as “an officer of the court” where the conduct at issue was closely associated with the judicial phase of the criminal process. See Van de Kamp v. Goldstein, 555 U.S. 335, 341-343 (2009). For example, when a prosecutor “prepares to initiate a judicial proceeding, ” “appears in court to present evidence in support of a search warrant application, ” or conducts a criminal trial, bond hearings, grand jury proceedings, and pre-trial “motions” hearings, absolute immunity applies. Id. at 343; see also Buckley v. Fitzsimmons, 509 U.S. 259 (1993); Dababnah v. Keller-Burnside, 208 F.3d 467 (4th Cir. 2000); Hendricks v. Bogle, 3:13-CV-2733-DCN, 2013 WL 6183982, at *2 (D.S.C. Nov. 25, 2013) (“In South Carolina, the Attorney General and his assistants function as prosecutors in criminal appeals, post-conviction relief actions, and in proceedings under the SVPA.... [The Attorney General has] absolute immunity for [his] prosecution-related activities in or connected with judicial proceedings.”); Garrett v. McMaster, 7:07-2952-HFF-WMC, 2008 WL 3411673 (D.S.C. Aug. 11, 2008) (finding that the Attorney General and a former Assistant Attorney General had prosecutorial immunity for conduct related to presenting the State's case). Therefore, if Plaintiff is attempting to assert a claim against Defendant Wilson based on Wilson's participation in Plaintiff's criminal proceedings, his claim is barred. See Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (absolute immunity “is an immunity from suit rather than a mere defense to liability”).
V. Failure to Bring Case into Proper Form
Plaintiff also has failed to bring this case into proper form. In the Court's Order dated April 5, 2021, Plaintiff was given the opportunity to bring his case into proper form by providing certain items to the Court. He was specifically warned that the failure to provide the necessary documents within the timetable set forth in the Order would subject the case to dismissal. See ECF No. 8. Although Plaintiff provided some of the required items, he failed to provide a fully completed summons form and fully completed and signed Forms USM-285 (in particular, Plaintiff failed to provide addresses for service of all Defendants on these forms as needed for service of process).
The time to bring this case into proper form has now lapsed, and Plaintiff has failed to provide all items required to bring this case into proper form. Thus, in the alternative, it is recommended that this action be dismissed in accordance with Fed.R.Civ.P. 41. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
MOTION TO PROCEED IN FORMA PAU PERIS
Plaintiff has filed a Motion for Leave to Proceed in Forma Pauperis (IFP) under 28 U.S.C. §1915. ECF No. 12. Plaintiff's IFP Motion should be denied because Plaintiff is subject to the “three-strikes” rule of the PLRA and he has not alleged that he is under imminent danger of serious physical injury.
The PLRA's three-strikes rule “generally prevents a prisoner from bringing suit [IFP]- that is, without first paying the filing fee-if he has had three or more prior suits ‘dismissed on the grounds that [they were] frivolous, malicious, or fail[ed] to state a claim upon which relief may be granted.'” Lomax v. Ortiz-Marquez, 140 S.Ct. 1721, 1723 (2020) (quoting 28 U.S.C. § 1915(g)).Any of the enumerated types of dismissals counts as a strike, “whether [the dismissals are] with prejudice or without.” Id. To avoid application of the three-strikes bar, a prisoner must demonstrate that he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
This statute provides:
In no event shall a prisoner bring a civil action or appeal a judgement in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it its frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.28 U.S.C. § 1915(g).
This Court may take judicial notice that in at least three of Plaintiff's prior thirteen non-habeas cases filed in this district since 1995, a “strike” has been entered because the civil actions were finally dismissed as frivolous, malicious, or for failure to state a claim upon which relief may be granted. See Foster v. Cole, No. C/A 3:09-452-PMD-JRM, 2009 WL 1923382 (D.S.C. June 30, 2009), aff'd, 353 Fed.Appx. 833 (4th Cir. 2009)(dismissing case and assigning a strike because the complaint was frivolous and vexatious); Foster v. Gowdy, No. 3:04-23193- PMD-JRM (D.S.C. April 13, 2005) (dismissing case and assigning a strike because the complaint was frivolous); Foster v. State of SC, No. 3:03-384-PMD-JRM (D.S.C. March 5, 2003) (dismissing case and assigning a strike based on a finding of frivolity); see also Foster v. Spartanburg City Police Dep't & Crime Lab, No. 3:10-1469-CMC-JRM, 2010 WL 3420904 (D.S.C. July 8, 2010), report and recommendation adopted, No. CIV.A. 3:10-1469, 2010 WL 3420838 (D.S.C. Aug. 26, 2010)(denying plaintiff's motion to proceed IFP in light of his three prior strikes and dismissing the case for the plaintiff's failure to timely pay the full filing fee). “[T]he fact that an action was dismissed as frivolous, malicious, or failing to state a claim, and not the case's procedural posture at dismissal, determines whether the dismissal constitutes a strike under Section 1915(g).” Blakely v. Wards, 738 F.3d 607, 610 (4th Cir. 2013).
See Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir. 1989) (“We note that ‘the most frequent use of judicial notice is in noticing the content of court records.'”).
Thus, Plaintiff cannot proceed with the instant Complaint without prepaying the filing fee unless his claim satisfies the exception for imminent danger of serious physical injury provided by the three-strikes rule. See 28 U.S.C. § 1915(g); Lomax v. Ortiz-Marquez, 140 S.Ct. at 1723; Blakely v. Wards, 738 F.3d at 609; Green v. Young, 454 F.3d 405, 407 (4th Cir. 2006). This Complaint does not fit within this exception to enable Plaintiff to proceed IFP because Plaintiff does not allege that he is in imminent danger of serious physical injury as a result of Defendants' actions or inactions.
Courts have held that the “imminent danger” exception to § 1915(g)'s three strikes rule must be construed narrowly and applied only “for genuine emergencies, ” where “time is pressing” and “a threat ... is real and proximate” to the alleged official misconduct. Lewis v. Sullivan, 279 F.3d 526, 531 (7th Cir. 2002). To satisfy the imminent danger element, Plaintiff must allege facts showing that he was in imminent danger at the time the complaint was filed; allegations that the prisoner has faced imminent danger in the past are insufficient to trigger the exception to section 1915(g). See Johnson v. Warner, 200 Fed.Appx. 270, 272 (4th Cir. 2006); Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d Cir. 2001). The imminent danger exception in § 1915(g) “focuses on the risk that the conduct complained of threatens continuing or future injury, not whether the inmate deserves a remedy for past misconduct.” Johnson v. Warner, 200 Fed.Appx. at 272 (quoting Martin v. Shelton, 319 F.3d 1048, 1050 (8th Cir. 2003)). Vague, speculative, or conclusory allegations are insufficient to meet the exception to the three-strikes rule. Rather, the inmate must make “specific fact allegations of ongoing serious physical injury, or of a pattern of misconduct evidencing the likelihood of imminent serious physical injury.” Id. Factual allegations that are remote, speculative, or hypothetical do not rise to the level of “imminent danger.” See Welch v. Selsky, No. CIVA906CV00812LEKDEP, 2008 WL 238553, at *5 (N.D.N.Y. Jan.28, 2008) (“The imminent danger an inmate faces, moreover, must be real, and not merely speculative or hypothetical.”); see also White v. State of Colorado, 157 F.3d 1226, 1231-1232 (10th Cir. 1998) (vague or conclusory assertions of harm fail to raise a credible allegation of imminent danger).
Plaintiff has not made any specific claims of imminent danger. Although Plaintiff writes, in the “Injuries” section of his Complaint (ECF No. 1 at 6), that he has been treated for various medical conditions (including high blood pressure and a sinus infection) while incarcerated at SCDC, this does constitute an imminent danger. His mere mention that there are inmates at Trenton Correctional Institution who were infected with COVID-19 (see ECF No. 1 at 5) also fails to state a claim of imminent danger. See, e.g., Johnson v. Wilcher, No. CV420-089, 2020 WL 2064935, at *2 (S.D. Ga. Apr. 28, 2020) (imminent danger exception to section 1915(g) did not apply based on a general fear of contracting COVID-19 in the prison); Littlejohn v. Whitmer, No. 2:20-CV-39, 2020 WL 1685310, at *3 (W.D. Mich. Apr. 7, 2020) (plaintiff failed to allege imminent danger from COVID-19 where the conditions of confinement did not place him in any greater risk than the general public and did not claim a particularized risk of imminent physical harm).
Plaintiff has accrued at least three valid strikes under the PLRA and has not alleged that he is under imminent danger of serious physical injury. Thus, even if he has stated a cognizable claim (which, as discussed above, he has not done) he is barred by from filing this action IFP and must pay the filing fee if he wishes to proceed. See 28 U.S.C. § 1915(g); Green v. Young, 454 F.3d at 407.
RECOMMENDATION
Based on the foregoing, it is RECOMMENDED that the Court DISMISS Plaintiffs Complaint without issuance and service of process. It is also RECOMMENDED that Plaintiffs Motion to Proceed IFP (ECF No. 12) be DENIED.
The undersigned is of the opinion that Plaintiff cannot cure the defects identified above by amending his complaint. See Bing v. Brivo Sys., LLC, 959 F.3d 605, 608-615 (4th Cir. May 19, 2020) (citing Goode v. Cent. Va. Legal Aid Soc'y, 807 F.3d 619 (4th Cir. 2015); Domino Sugar Corp. v. Sugar Workers Local Union 392 of United Food and Commercial Workers Int'l Union, 10 F.3d 1064 (4th Cir. 1993)).
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).